State Consumer Disputes Redressal Commission
National Insurance Co. Ltd.,74-A, ... vs M. Ramesh Namakkal on 22 November, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt. Vasugi Ramanan, M.A.,B.L., MEMBER I Thiru S. Sambandam, B.Sc., MEMBER II F.A.NO.93/2007 (Against order in O.P.NO.71/2004 on the file of the DCDRF, Nagercoil) DATED THIS THE 22nd DAY OF NOVEMBER 2010 National Insurance Co. Ltd., Rep. by its Regional Manager 74-A, Paramathi Road, Namakkal Appellant / Opposite party Vs. M. Ramesh S/o. Muthan M-3, Kauveri Nagar TNHB Phase-I, Trichy Road Namakkal Respondent / Complainant The Respondent as complainant filed a complaint before the District Forum against the Respondent / opposite party praying for the direction to the opposite party to pay Rs.147900/- to pay towards damage, alongwith compensation of Rs.1 lakh alongwith cost. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.23.8.2006 in O.P.No.55/2004. This appeal coming before us for hearing finally on 3.11.2010. Upon hearing the arguments of the counsels on either side, upon perusing the documents, lower court records, this commission made the following order: Counsel for the Appellant/ Opposite party: Mr. N. Vijayaraghavan, Advocate Counsel for the Respondent/ Complainant: Mr. D. Shivakumaran, Advocate M. THANIKACHALAM J, PRESIDENT 1.
The opposite party is the appellant.
2. The respondent in this appeal, as complainant, claimed a sum of Rs.1,47,900/-, as own damage, to the vehicle, in addition to a sum of Rs.1 lakhs, as compensation for mental agony, contending that as the owner of a tanker lorry, bearing Regn. No.GJ 06 W 9722, had insured the same, with the opposite party, that the vehicle met with an accident in Karnataka State on 17.2.2004, that in view of the fact there was no permit for the vehicle to ply at Karnataka, at the time of the accident, he had obtained a temporary permit, for the period 17.2.2004 to 23.2.2004, that based upon the policy, when he lodged a claim, it was repudiated unjustifiably, thereby the opposite party had caused negligence, and mental agony, for which they are liable to pay the above said claim.
3. The opposite party, admitting the ownership of the tanker lorry, as well a period of insurance, resisted the claim, interalia contending that at the time of the accident at Karnataka, since the tanker lorry had no permit to ply there, the owner had violated the conditions of the policy, and on this ground alone, the opposite party was constrained to repudiate the claim, which will not come within the meaning of deficiency in service, thereby prayed for the dismissal of the complaint, denying other averments also.
4. The District Forum, assessing the available materials, felt that though the complainant had claimed damage, he has not produced any documents to prove the same, that the complainant has not committed any violation of the policy, and in this view, the repudiation should be construed as deficiency in service. Though concluded so, instead of granting an order for the repair charge, quantifying the amount, issued a peculiar direction, to the opposite party to assess the quantum, and to pay the same, with interest, thereby causing grievance to the opposite party, resulting this appeal.
5. There is no loggerhead, between the parties, regarding ownership of the vehicle, as well the period of coverage of the insurance. During the period of insurance viz. 28.3.2003 to 27.3.2004, when the vehicle was driven or plying in Karnataka State, it had met with an accident, on 17.2.2004. Based upon the policy, the complainant lodged a claim, under Ex.A4, for which a reply was given under Ex.A6, repudiating the claim, stating the vehicle was plying without a valid permit in the state of Karnataka, and the subsequent payment of tax would not validate the plying, without the permit in the first place, thereby informing there is a violation of the conditions of the policy. Thus unable to realize any amount from the opposite party, based upon the policy, a consumer complaint came tobe filed.
6. After the accident, if the vehicle was repaired, spending the amount, that too, after information to the insurer, the only the insured is entitled to get the amount, according to the terms and conditions of the policy. In this case, though the complainant had claimed a sum of RS.1,47,900/-, as own damage, it is not the case of the complainant anywhere, that he had spent that amount, for repairing the vehicle, to restore its original condition. Because of this fact alone, the District Forum unable to pass any order quantifying the damage, issued a direction, to the opposite party to assess the damage, which is not possible after 6 years or so, thereby the direction itself became infructuous, is our considered opinion. Be it as it may. Now let us see, whether the complainant is entitled to any damage, by way of repair charge, based upon the policy.
7. The learned counsel for the appellant, urged before us, that there was violation of policy condition, and such a person is not entitled to claim own damage, inviting our attention, not only to the pleadings in the complaint, but also certain documents. Admittedly we would say so, when the accident had taken place on 17.2.2004, at Karnataka, the vehicle in question, though said to be possessing national permit, not endorsed by State of Karnataka, thereby preventing or prohibiting this vehicle, to ply in Karnataka state. In paragraph 2 of the complaint itself, it is clearly stated, when the accident had taken place, since the vehicle was not having permit, he had obtained, temporary permit from 17.2.2004 to 23.2.2004, and the relevant portion in tamil reads It is not the case of the complainant, that after obtaining the temporary permit, when the vehicle was plying in Karnataka State, the incident/ accident had taken place. Therefore, it is crystal clear, even by the pleadings of the complainant, at the time of the accident, the vehicle had no valid permit to ply at Karnataka State.
8. As seen from Ex.A7 & B2, after the accident alone, for temporary permit, amount was paid as penalty or otherwise, giving temporary permit, for the period 17.2.2004 to 27.2.2004. If we read this document, coupled with pleadings, extracted above, the irresistible conclusion, that could be drawn is, that when the accident had taken place, the vehicle had no valid permit, thereby we are constrained to say, that the owner of the vehicle permitted to ply his vehicle in Karnataka State, without permit, thereby violated the conditions of the policy.
Thus fixing, we have to see whether such a person is entitled to compensation.
8. The District Forum, not properly appreciating, Ex.A7, as well as the pleading, has recorded a finding, as if the complainants vehicle was having valid temporary permit, to ply in the state of Karnataka, at the time of the accident, which is incorrect, even as per the pleading, as well as the temporary permit also.
It is not the duty of the opposite party, to summon the Regional Transport Authority, to verify whether temporary permit was given first, then accident had taken place, or not, when there is sufficient materials to show only after the accident, temporary permit should have been obtained. In the check-post itself, amount paid. Before reaching the checkpost or paying the amount, accident had taken place, and that is the reason for the collection of the penalty, without permit to ply in Karnataka State. Therefore, the conclusion of the District Forum, that there was valid permit, temporary in nature, and the denial of the opposite party to pay compensation, should be construed as deficiency in service, is not acceptable to us.
9. The claim in the complaint is for own damage, and no 3rd party claim is involved, where generally we can ignore the violation committed by the owner of the vehicle. The learned counsel for the appellant, invited our attention to a decision of the Apex Court, in National Insurance Company Ltd Vs. Challa Bharathamma and others, reported in 2004 ACJ 2094, wherein plying a vehicle, without valid permit was considered, even with respect to third party claim. While considering the provisions available under Sec.149, as well as 66 of the Motor Vehicles Act, the Apex Court has come to the conclusion, when the insured had not obtained permit, to ply the vehicle, the insurance company is not liable to pay the compensation. However considering the claim in the above decision, pertaining to the 3rd party, a direction was given to the insurance company, to deposit the amount, and recover the same from the insurer, by initiating the proceedings before the executing court, not compelling the insured, to file a suit against the insured, thereby indicating when there is a violation of permit, the insurer is not liable to pay the amount, that too in respect of own damage, which is the case here. The District Forum, without properly appreciating at the time of accident, there was no temporary permit obtained, in our opinion, committed an error, leading to an erroneous conclusion, which is liable to be set aside.
10. In the result, the appeal is allowed, setting aside the order of the District Forum in O.P.No.55/2004 dt.23.8.2006, and the complaint is dismissed. Considering the facts and circumstances of the case, there will be no order as to cost throughout.
Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the petitioner, duly discharged.
S.SAMBANDAM VASUGI RAMANAN M. THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/Insurance